Gastonia, NC
The clause is real. The timing is the tell. But before anybody builds an argument on the timing, somebody in this Forum should read the actual list, because the version circulating in conservative media is not the version on the White House website.
There was no last-day volume. The volume came in December — roughly fifteen hundred commutations on the twelfth, mostly people already on home confinement, then thirty-seven of forty federal death sentences on the twenty-third. That was the largest single-day clemency action any president has taken, and it happened seven weeks before he left. Whatever one thinks of it, it is the ordinary kind of thing, done at ordinary scale, and nobody is arguing about it.
The January twentieth package was small and it was a different species. In the morning: Anthony Fauci, Mark Milley, the members and staff of the House January 6 committee, and the Capitol and Metropolitan police officers who testified before it. Then, roughly twenty minutes before the handover, five relatives — his brothers James and Frank, his sister Valerie, and two spouses.
I read copy for a living, and the first thing to do with a list is look for what the entries have in common. It is not a subject matter. Fauci ran an infectious-disease institute. Milley chaired the Joint Chiefs. Liz Cheney chaired a congressional committee. Harry Dunn was a police officer who testified about being beaten in a tunnel. Frank Biden sells nothing of interest to a federal prosecutor that anyone has yet described.
What they share is a single fact: every one of them had been named, publicly, by the man who was about to take the oath, as someone he wanted prosecuted. He said the committee members should go to jail. He said Milley’s conduct was so egregious that in times gone by the punishment would have been death. He put out a statement the same morning calling the pardons disgraceful and saying many of the recipients were guilty of major crimes.
That is the organizing principle of the package, and it is not a subject-matter file. It is an enemies list, read backward.
Now, that fact cuts both ways and I am not going to pretend it only cuts mine. Biden’s own statement said the recipients had been subjected to ongoing threats and intimidation for faithfully discharging their duties, and that the pardons should not be mistaken as an acknowledgment that anyone had committed a crime. Milley said he did not want to spend whatever time he has left fighting people seeking retribution for perceived slights, or put his family through the expense and anxiety. Those are not the words of men negotiating a cover-up. They are the words of men who believe a threat was real.
The threat probably was real. That is the honest place to start.
My objection survives it anyway, and here is the shape of it. A pardon is not a defense. It is the removal of the question from the only room where it could have been settled. If the incoming administration was going to bring bad-faith prosecutions, the answer to a bad-faith prosecution is a grand jury that declines to indict, a judge who dismisses, a jury that acquits — all of which happened, repeatedly, to the last special counsel who tried something similar. Those outcomes produce a record. A pardon produces a permanent absence of one.
And the absence is what lasts. Fauci will now never testify under oath about gain-of-function funding in a proceeding with consequences attached, and the referrals a senator sent to the Justice Department about his testimony will never be tested. Whatever the answer to that question was, it is now unavailable, and it is unavailable because of an instrument used by his own side.
That is the cost, and it is a real one whether or not the prosecution would have been vindictive.
So: legitimate power, plainly. Also a package timed for one reason, stated openly by the man who issued it, which is that the next office would otherwise have answered these questions in the same building. He did not hide the motive. He announced it. The argument is not about what he did or why. It is about whether preemptive clemency is a defensible response to a threatened prosecution, and my answer is that it is the response of a man who has concluded the courts will not hold — which is a judgment about American institutions considerably darker than anything in the second half of this question.
Owatonna, MN
Minnesota can hold two sentences at once, and this file requires it more than most.
Sentence one: the pardon power is the president’s, it is not reviewable in any ordinary sense, and no court is going to rewrite it because the package is ugly or the timing is convenient.
Sentence two: a president who papers a named class of people twenty minutes before the handover, expressly because the incoming president has promised to prosecute them, has done something to the transfer of power that ought to be argued about rather than absorbed.
Both of those are true and I would rather establish them before I take a side.
Now the part I think this Forum needs to sit with, because it is uncomfortable and it belongs to us. In October of last year, in the seventeenth question of the previous file, this panel spent eight essays asking whether a future administration would open parallel files against a departing opposite-party president, and whether defenders of the last docket would rediscover process. I argued then that the question was not hypothetical, because the incoming candidate had spent two years saying he was our retribution and had promised a special prosecutor for the sitting president’s family.
Eleven weeks later, a president used the pardon clause on exactly the people that promise had named.
That is the sequence, and any honest reading of the January twentieth package has to start there. Biden’s own statement gives the reason in plain English: these were public servants subjected to ongoing threats and intimidation, and the pardons were not an acknowledgment that anyone had done anything wrong. Milley’s statement said he did not want to put his family through the expense of a retribution campaign. Neither man is claiming mercy. Both are claiming shelter.
I spent enough years in financial planning to know what an insurance purchase looks like, and this is one. The question is not whether the buyer had a reason. He had a reason and it was published. The question is what the purchase costs the rest of us.
Here is my answer, and it is narrower than the one this file’s consensus note wants.
The cost is that a category of questions has been permanently closed by a party that had an interest in closing it, and closed in a way that cannot be reopened by any subsequent finding. Some of those questions were vindictive nonsense and would have collapsed in a courtroom. Some were not. The senator who referred Fauci’s congressional testimony to the Justice Department over what he had said about gain-of-function funding was raising a question that had a factual answer, and there was a live statute of limitations on it. That answer now does not get produced, ever, and the reason it does not is a document signed by the President of the United States on his way out.
What I will not do is describe the whole package as a lock on that one file. It is not. Fauci is one name. Milley’s exposure was Afghanistan and his own remarks about the incoming president. The committee members’ exposure was a congressional investigation. The testifying police officers had no exposure at all that anyone has articulated, which is itself the most telling entry on the list — if you are pardoning the officers who described being beaten, you are not covering up a scientific dispute. You are conceding that you expect the criminal law to be turned on witnesses.
That concession is the real subject of this question and it is worse than the cover-up theory, not better. A cover-up assumes the system works and someone is hiding from it. This assumes the system will not work, and acts accordingly, from inside the system.
So my answer is that the power was used legitimately in the narrow legal sense and destructively in the civic one, and that the timing was not a trick. It was a forecast. The forecast may even have been right, and that is the part that should keep people up.
Prescott Valley, AZ
Out here a brand tells you who owns the calf. A pardon is supposed to tell you what was forgiven. The trouble with this package is that it does neither, and I want to work through why before I reach for the second half of the question.
I taught for a long time and the habit that survives is refusing to teach a document I have not read. So take the January twentieth proclamations and ask what a student could learn from them.
The morning proclamation covers Anthony Fauci, Mark Milley, the members and staff of the House select committee on January 6, and the police officers who testified before it. The evening one covers five relatives. Both are full and unconditional. Neither names a single offense. The accompanying statement says the recipients had been subjected to threats and intimidation for discharging their duties, and adds that the pardons should not be mistaken as an acknowledgment that any individual engaged in wrongdoing.
Read that last clause carefully, because it is the strangest sentence in American clemency practice. The instrument forgives an offense and the statement issued with it says there was no offense. A student would ask, reasonably, what exactly has been remitted, and there is no answer on the page.
That is my objection, and I want to separate it from the objection this Forum’s consensus note is reaching for.
The note says the object of the package was the pandemic-origins file. That is not what the list says. One of the roughly two dozen named or described recipients ran an infectious-disease institute. The rest are a general, a congressional committee, its staff, five relatives, and several Capitol police officers who were assaulted in a tunnel and later testified about it. A student handed that list and told it was a cover-up about a laboratory in Wuhan would ask why the police officers are on it, and the honest answer is that they are on it because the incoming president said the committee that heard them should be jailed.
So the object is not a subject. The object is a set of people, and the criterion for inclusion is that the next president had threatened them by name.
That produces a much harder civics lesson than the one the note proposes, and I think it is the one worth teaching.
Ask the class: what should a president do when his successor has publicly promised to prosecute named individuals for conduct nobody has identified as a crime? The honest options are three. Do nothing and trust the courts. Do nothing and trust the voters. Or use the clemency power preemptively and accept that you have removed a class of citizens from the reach of the criminal law by decree.
Each of those has a real cost and the class should be made to say the costs out loud. Trusting the courts means real people spend years and fortunes being right. Trusting the voters means the harm lands before the remedy. And the third option means a president has decided that the judicial branch cannot be relied on to sort a bad prosecution from a good one, which is a statement about the republic that he did not quite make in words and did make with a signature.
I would want students to notice that the third option is the only one that cannot be undone. A wrongful prosecution can be dismissed. An acquittal can be entered. A pardon of uncharged conduct is permanent and it takes the underlying question with it.
That is why I land on the second half of the question, and I would land there even granting every word of Biden’s stated reason. The timing was not incidental. Twenty minutes before the handover is not when you perform mercy. It is when you close a door, and the door closes on the good questions along with the bad ones.
Dayton, OH
A plant can have a lawful stop button and still hit it at the end of a shift so the next crew never counts the scrap. That was going to be my whole answer to this question. Having read the actual list, I think the analogy is wrong, and the correct one is more troubling.
Here is what was actually signed on the twentieth. Fauci. Milley. The members and staff of the January 6 committee. The Capitol and Metropolitan police officers who testified before it. Then five relatives, twenty minutes before noon.
The scrap theory requires that the covered people share a defect. They do not share a defect. They share a threat. Every one of them had been publicly named by the incoming president as someone he wanted prosecuted, and he confirmed it within hours by calling the pardons disgraceful and asserting that many of the recipients were guilty of major crimes.
So this is not a plant hiding scrap. This is a plant manager who believes the next inspector has been sent to write findings regardless of what the parts look like, and who has therefore removed the parts from the line.
That reframing matters because it changes what the design failure is.
In process terms, the failure is not the pardon. The failure is upstream, in a system that gives one man the authority to decide who gets investigated and gives the outgoing man no remedy except to remove people from the process entirely. There is no intermediate control. There is no mechanism by which a departing administration can say: examine this conduct, but under a published standard, with an independent reviewer, on a defined timetable. Every tool in the box is binary. Either the next prosecutor has full discretion or the subject is immunized forever.
A control system with only two settings, one of which is nothing and the other of which is permanent, is not a control system. It is a switch, and switches get thrown for political reasons because there is nothing else to throw.
I want to give the first half of the question its due before I decline it. This is a constitutional power. It is personal by design. Presidents have used pre-charge pardons since the founding — that is not an innovation and anybody arguing otherwise is going to lose the argument on the history. And the stated justification is not a lie. The threats were made in public, repeatedly, by name.
What I still cannot accept is the output. The output is that a set of questions with real factual content — what did a senior official say to Congress about funding, and was it accurate — is now permanently unanswerable, and the reason is an instrument wielded by that official’s own side. Whatever the merits of a prosecution, the merits are exactly what a pardon prevents anyone from ever establishing.
That is why I land on the second half, with a correction to how this Forum has been describing it. The package was not built around a subject-matter file. It was built around a list of names supplied by the incoming administration. The effect on the pandemic questions is real and it is collateral, not central, and treating it as central will make our argument easy to dismiss by anybody who has read the proclamations.
The design lesson is the one I would carry forward. When the only available response to a threatened bad-faith prosecution is permanent immunization, you will get permanent immunizations, and you will get them at twenty minutes to noon on the last day. That is the process telling you what it is missing.
Wheeling, WV
I have sat through enough discipline cases to know the difference between a grievance and a lockout, and this package is a lockout. I also know that management sometimes locks the gate because it has been told the other side is coming with a bat, and that is what makes this one hard.
Read the list. Fauci. Milley. The January 6 committee members and their staff. The police officers who testified about being beaten in the tunnel. And then, at twenty minutes to noon, five relatives.
Now read what the incoming president had been saying for two years. Cheney and the committee should go to jail. Milley’s conduct in a time gone by would have merited death. He is our retribution. Within hours of the pardons he put out a statement calling them disgraceful and saying many of the recipients were guilty of major crimes.
So the threat was not manufactured by Biden’s press shop. It was on the record, in the man’s own voice, for two years.
That is the strongest thing anybody can say for this package and I am not going to pretend otherwise. In my old trade, if management has publicly announced it intends to fire a list of named workers regardless of what they did, and the union locks the contract down before the new plant manager arrives, nobody in the hall calls that a cover-up. They call it seeing what is coming.
Here is why I still land where I land.
A pardon is not a defense. It does not answer the accusation. It removes the forum. And the forum is the thing that produces the record — the acquittal, the dismissal, the grand jury that says no. Those outcomes are what tell the country that the charge was garbage, and this package guaranteed that no such record will ever exist for any of these people. Fauci will never be cleared, because he will never be tried. Milley will never be vindicated in a courtroom, because there will not be one. They bought certainty and they paid for it with the possibility of being publicly proven right.
Milley said as much. He said he did not want to spend whatever time he has left fighting people seeking retribution, and did not want to put his family through the expense and anxiety. That is an entirely human calculation and I do not blame the man. I have watched grievants take a settlement rather than win in eighteen months, and I have never once thought less of them for it.
But the union does not get to pretend a settlement is a ruling, and the country should not pretend a pardon is an exoneration.
The other thing I would say to my own side is to stop calling this a pandemic cover-up, because the list does not support it and we will get embarrassed. One name on that list has anything to do with a laboratory. The police officers who testified do not. The committee staff do not. Frank Biden does not. If the object were the origins file you would paper the funders, the reviewers, and the agency lawyers, and instead the package papered the people the next president had threatened by name. Those are two different documents and we should describe the one that was actually signed.
What I will say is that the family half, twenty minutes before the handover, is a different animal from the public-servant half, and it deserves its own hearing rather than being folded in. That is next month’s question and I will save it.
On this one: a legitimate power, exercised for a stated reason that was probably accurate, in a way that permanently forecloses the only process capable of settling any of it. That is a lockout. Lockouts are sometimes justified. They are still lockouts, and the plant does not run the same afterward.
Tyler, TX
East Texas would look at a man who papered his whole crew on the last morning and ask two questions. What was he afraid of, and would I have done the same? I want to answer both honestly, and the second one is where this gets uncomfortable for people who think like I do.
Start with the coverage. The morning proclamation runs to Fauci, Milley, the January 6 committee members and staff, and the officers who testified. The evening one, twenty minutes before the handover, runs to five relatives. Full and unconditional, no offense named.
Now the underwriting question. What was the insured peril? It was not a subject-matter exposure. It was a person: the incoming president had spent two years saying he would prosecute these people, had named several of them, had said one of them would in another era have been executed, and had nominated to run the FBI a man who published a list of officials to be pursued. When the pardons landed he confirmed the peril in writing within hours.
In my business, when the loss you are insuring against has been announced in advance by the party who will cause it, the claim is not speculative. It is expected. And an expected loss changes how you read the policy that was written to cover it.
So here is my reverse-the-names test, run straight.
Suppose a departing Republican president, facing an incoming Democrat who had spent two years promising to prosecute named Republican officials by name, issued full and unconditional pardons on the last morning to his intelligence chiefs, his outgoing chairman of the Joint Chiefs, the members of a congressional committee that had investigated the other party, and five of his own relatives.
Would I call it a cover-up? Some of it, yes — the relatives, without question, and I will say more about that next month. Would I call the public-servant half a cover-up? I do not think I would. I think I would call it a man who had concluded the courts were not going to protect people from a prosecution announced in advance, and I would spend most of my time arguing about whether he was right.
That answer does not change when I turn the names back around, which is how I know it is worth something.
Where I still come down on the second half of the question is the instrument rather than the motive. Insurance has a principle that applies here better than any constitutional argument. You do not write a policy that pays before the loss is defined, because a policy that pays on undefined loss is not insurance. It is a transfer. And these proclamations are undefined in the most complete way available: full, unconditional, no offense identified, accompanied by a statement saying nobody did anything wrong.
That is a transfer of legal exposure from a group of named individuals to the public, permanently, with no adjuster ever assigned. Whatever the merits of any particular question about any particular recipient, nobody will now determine them. The good-faith questions die with the bad-faith ones, and in this file the good-faith questions include at least one with a factual answer and a live limitations period.
So: a real peril, honestly stated, addressed with an instrument that costs more than the people using it acknowledged. Not a chapel service and not quite a fraud. A settlement paid in advance out of an account that belongs to the country.
Long Island, NY
I draft instruments for a living, and the January twentieth proclamations are unusual documents. I want to describe what they actually say, because most of the argument this week has been conducted about a package nobody has read.
There are two. The morning instrument grants full and unconditional pardons to Anthony Fauci, Mark Milley, the members and staff of the House Select Committee to Investigate the January 6th Attack, and the United States Capitol Police and Metropolitan Police Department officers who testified before that committee. The evening instrument, issued roughly twenty minutes before the transfer of power, covers James B. Biden and Sara Jones Biden, Valerie Biden Owens and John T. Owens, and Francis W. Biden.
Neither instrument identifies an offense. Both are unconditional. The accompanying statements say the recipients had been subjected to threats and intimidation for faithfully discharging their duties, or in the family’s case attacks motivated solely by a desire to hurt the President, and — this is the operative clause for my purposes — that the pardons should not be mistaken as an acknowledgment that any individual engaged in any wrongdoing, nor should acceptance be misconstrued as an admission of guilt.
That last clause is doing something no other clemency instrument I have drafted or read attempts. It is meant to disarm Burdick v. United States, the 1915 case holding that a pardon carries an imputation of guilt and that acceptance is a confession of it. Biden’s drafters clearly anticipated that the recipients would be described as confessed criminals, and they wrote a sentence to prevent it.
Whether a presidential statement can override a Supreme Court holding about the legal effect of the instrument is doubtful, and it is the most interesting unresolved question in the whole package. The pardons themselves are unreviewable. The imputation is not something the President gets to legislate away in a press release.
That matters for the civic question, because it exposes what these documents are for. A mercy instrument does not need to disclaim guilt; mercy presupposes guilt and forgives it. An instrument that grants a pardon and simultaneously insists there was nothing to pardon is not performing clemency at all. It is performing immunity, and immunity from prosecution is not a power the Constitution assigns to the President in those terms.
He has it anyway, functionally, because the pardon power is broad enough to reach uncharged conduct — that has been settled since Ex parte Garland in 1866 and I will not pretend otherwise. But the function and the form have come apart here in a way that should be named rather than absorbed.
Now the timing, which is what the question actually asks.
I would not describe this as a volume dump. The volume was in December — roughly fifteen hundred commutations on the twelfth and thirty-seven capital sentences on the twenty-third, both defensible on ordinary clemency grounds and neither seriously contested. The January twentieth package is small, targeted, and composed almost entirely of people the incoming president had publicly threatened to prosecute.
So the design is not concealment of a subject. It is preclusion of a proceeding. The incoming Department cannot answer these questions in the same office because the questions have been removed from every office, permanently, by a document that names no conduct.
Is that a legitimate use of the clause? As a matter of law, almost certainly yes, and no court will say otherwise. As a matter of instrument design, it is a stay of proceedings that no judge issued, entered by a party in interest, on the last morning, against a successor. The ordinary sequence is investigation first and clemency after, if mercy is still warranted. Reversing that sequence is what makes this package a different legal object from the one the heading claims.
Cheyenne, WY
He had the pen and he used it, and I want to describe what he used it on before I say what I think, because the version going around does not match the paperwork.
Two documents on the twentieth. The first covers Anthony Fauci, Mark Milley, the members and staff of the January 6 committee, and the police officers who testified in front of it. The second, twenty minutes before he handed over the office, covers his two brothers, his sister, and two of their spouses. Both full and unconditional. Neither names a crime.
I keep books for a freight and energy company, and the first rule of the trade is that you post a transaction to the account that describes what it actually is. So what is this?
It is not a volume dump. The volume was in December — fifteen hundred commutations on the twelfth, thirty-seven death sentences the week before Christmas. Those are ordinary clemency entries at an unusual scale and almost nobody is arguing about them, including me.
It is not a subject-matter cover either, and I want to say that plainly because I have heard people I agree with on nearly everything say it is. If you were papering over a question about virus funding, you would paper the funders, the reviewers, and the agency lawyers who wrote the grants. You would not paper a retired general whose exposure was Afghanistan, or a congressional committee, or the Capitol police officers who testified about getting beaten in a tunnel. Those entries do not belong in that account and putting them there is bad bookkeeping.
What the entries do have in common is one line item: every one of them was named by the incoming president as somebody he intended to prosecute. He said the committee members should go to jail. He said what he said about Milley. He called the pardons disgraceful within hours and said many of the recipients were guilty of major crimes.
So the account this belongs in is not concealment. It is preclusion. He precluded a set of prosecutions he expected to be brought in bad faith, and he did it by removing the defendants rather than by trusting the process to sort them out.
That is my objection, and it is narrower and I think more durable than the one in circulation. Mercy is a finished case. Preclusion is a case that never gets to start, and a case that never starts leaves no record of any kind — not a conviction, and not an acquittal either. Nobody named in that morning proclamation will ever be cleared, because clearing requires a proceeding, and the proceeding is what was cancelled. Fauci does not get vindicated. Milley does not get vindicated. They get an unconditional pardon and a statement from a departing president saying they did nothing wrong, which is worth exactly as much as the departing president’s word and not one dollar more.
There is one entry I cannot make fit the sympathetic reading, and it is the second document. Five relatives, twenty minutes before the handover, covering years nobody has described. That is a different account from the public-servant one and I would keep it in its own column rather than let it borrow the justification from the first. But that is next month’s question.
On this one: the power is his. The reason he gave was real and stated in public. The instrument he chose closes the door on the honest questions and the dishonest ones together, and it closes them permanently. Permanent is the part that matters. Permanent is what mercy never has to be. Mercy forgives a thing that happened; this forbids anyone from establishing whether anything happened at all.
